1
Fair Work Act 2009
s.437—Protected action
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
OS ACPM Pty Ltd T/A BHP Operations Services
(B2022/1581)
DEPUTY PRESIDENT DEAN CANBERRA, 28 OCTOBER 2022
Proposed protected action ballot of employees of OS ACPM Pty Ltd T/A BHP Operations
Services.
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU) (Union) has made an
application for a protected action ballot order (PABO) pursuant to s. 437 of the Fair Work Act
2009 in relation to certain employees of OS ACPM Pty Ltd T/A BHP Operations Services
(Respondent).
[2] The Respondent did not oppose the making of the PABO, however it opposed the
appointment of IRIQ Pty Ltd (IRIQ) as the protected action ballot agent (the ballot agent).
[3] As correctly identified by the Union, in the event the Commission does not decide that
IRIQ is to be the ballot agent, then the Commission must appoint the AEC as the ballot agent.
Irrespective, the Commission must otherwise make the PABO.
[4] A conference conducted on 25 October 2022 failed to resolve the disputed issue. The
conference followed extensive submissions and other material filed by both parties. A hearing
was subsequently scheduled for 4.15pm on 26 October, however both parties filed additional
written submissions and witness statements earlier that day and were content for the matter to
be determined on the papers as no persons providing witness statements were required for cross
examination.
Amended application
[5] An amended application was filed on 25 October 2022 seeking to correct the references
to ‘IRIQ Law Pty Ltd’ (named in the application to be the proposed ballot agent) to ‘IRIQ Pty
Ltd’, in addition to some other minor amendments. The Union requested that the Commission
[2022] FWC 2850
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 2850
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allow these amendments pursuant to s.586 of Act. The amendments were sought in response to
an objection made by the Respondent that IRIQ Law Pty Ltd had been deregistered in
September 2017, despite a number of PABOs having been subsequently made by the
Commission appointing this entity as a ballot agent under s.444 of the Act.
[6] I am satisfied that it is appropriate to accept the amended application and make the
corrections sought. As will be obvious, the Commission cannot appoint an entity that does not
exist as a ballot agent.
Appointment of protected action ballot agent
[7] Section 444(1) of the Act provides that the Commission may decide that a person other
than the AEC is to be the ballot agent for a ballot if:
(a) the person is specified in the application for the protected action ballot order as
the person the applicant wishes to be the protected action ballot agent; and
(b) the FWC is satisfied that:
(i) the person is a fit and proper person to conduct the ballot; and
(ii) any other requirements prescribed by the regulations are met.
[8] Regulation 3.11 of the Fair Work Regulations 2009 (the Regulation) provides that:
3.11 FWC may decide on ballot agent other than the Australian Electoral
Commission—requirements for protected action ballot agent
(1) For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements
that the FWC must be satisfied have been met before a person other than the
Australian Electoral Commission becomes the protected action ballot agent for
a protected action ballot.
Note: The person must also be a fit and proper person to conduct the ballot.
(2) The person must be capable of ensuring the secrecy and security of votes cast in
the ballot.
(3) The person must be capable of ensuring that the ballot will be fair and
democratic.
(4) The person must be capable of conducting the ballot expeditiously.
(5) The person must have agreed to be a protected action ballot agent.
(6) The person must be bound to comply with the Privacy Act 1988 in respect to the
handling of information relating to the protected action ballot.
(7) If the person is an industrial association or a body corporate, the FWC must be
satisfied that:
(a) each individual who will carry out the functions of the protected action
ballot agent for the industrial association or body corporate is a fit and
proper person to conduct the ballot; and
(b) the requirements in subregulations (2) to (6) are met for the individual.
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[9] As it is not in dispute that IRIQ is a body corporate, the Commission must be satisfied
that each individual who will carry out the functions of the ballot agent for the body corporate
is a fit and proper person to conduct the ballot.
[10] It is also not in dispute that a decision under s.444 of the Act to appoint a ballot agent
other than the AEC is a discretionary decision.
[11] Having made the amendments to the application sought by the Union, I am satisfied that
s.444(1)(a) has been met in that the person specified in the application is the person the applicant
wishes to be the ballot agent.
[12] The remaining issues to be determined, then, is whether:
a. the ballot agent is a fit and proper person,
b. the requirements of the Regulation are met, and
c. whether to exercise my discretion to appoint IRIQ as the ballot agent.
The case for the Respondent
[13] The Respondent’s final submissions were as follows:
“7. In respect of section 444(1)(b), the Commission must be satisfied that IRIQ Pty Ltd
is a fit and proper person to conduct the ballot.
8. The AMWU asserts, at paragraph 21 of its submissions, that IRIQ is a fit and proper
person to conduct the ballot. It is apparent that the AMWU contends that support
for that proposition is in paragraphs 16 to 18 of the Statement of Mr Dobson.
9. At paragraph 17 of his statement Mr Dobson asserts that IRIQ Pty Ltd has been
appointed the ballot agent in respect of ballots conducted of the workforces of BHP
Coal Pty Ltd, DMH Plant Services, Territory Power and Water, ALS Industrial,
Queensland Alumina Limited, Komatsu Australia, Opal Packaging Australia, G&S
Engineering Services and Lincoln Electric Company.
10. That evidence however, is not correct. A search of the Fair Work Commission's
website indicates that, to the extent orders could be located, the ballot agent in
respect of the above matters was IRIQ Law Pty Ltd. As reflected in Attachment A
to these submissions (ASIC extract), IRIQ Law Pty Ltd was, at each of the relevant
times, de-registered.
11. Further, a search of the Fair Work Commission's website does not reveal any
matters in which IRIQ Pty Ltd has been appointed as a protected action ballot agent.
12. It is apparent from paragraph 10 that in reliance on material put before the
Commission, the Commission has appointed an entity that does not exist as a
[2022] FWC 2850
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protected action ballot agent. That is a most unfortunate circumstance, and serves
to demonstrate the importance of accurate material being put before the
Commission. Reliance on the number of ballots that have actually been conducted,
but based on incorrect material, and on the face of the orders by the wrong entity,
in the Respondent's submission supports the view that the Commission cannot be
satisfied that IRIQ is fit and proper to conduct the important functions of a protected
action ballot agent.
13. Contrary to the AMWU's submissions at paragraph 22, it is not for the Respondent
to identify a reason why IRIQ is not fit and proper, it is for the AMWU to satisfy
the Commission that it is.
14. Having regard to the above, the Commission cannot be satisfied that IRIQ is a fit
and proper person to conduct the protected action ballot.
Regulation 3.11
15. The Commission must also be satisfied that each of the requirements in Regulation
3.11 is satisfied.
16. The Respondent does not dispute that the Commission can be satisfied of the
matters in sub - regulations (2) to (6) of Regulation 3.11
17. Regulation 3.11(7) however is not satisfied.
18. Regulation 3.11(7) prescribes further requirements about which the Commission
must be satisfied if the proposed ballot agent is an industrial association or a body
corporate. Those matters apply in addition to the pre-requisites in regulations
3.11(2) to (6).
19. Regulation 3.11(7) provides that where the proposed ballot agent is a body
corporate, the FWC must be satisfied that each individual who will carry out the
functions of the protected action ballot agent is a fit and proper person to conduct
the ballot and the requirements in regulations 3.11(2) to (6) are met.
20. In the Statement of Mr Devjee dated 25 October 2022 and the Statement of Mr
Dobson dated 25 October 2022, they both assert that Mr Devjee ‘is the only
employee of IRIQ who will carry out the functions of the protected action ballot
agent’. The reference to Mr Devjee being the only ‘employee’ is telling. What
neither Mr Devjee or Mr Dobson say is that Mr Devjee is the only person who will
carry out the functions of the protected action ballot agent. In those circumstances
the Commission cannot be satisfied that Mr Devjee is the only ‘individual’ who will
carry out the functions of the protected action ballot agent. The absence of
satisfactory evidence that Mr Devjee is the only individual who will carry out the
functions, and that each of the requirements in regulations 3.11(2) to (6) are
satisfied in respect of Mr Devjee is a basis to refuse the application to appoint IRIQ
as the ballot agent (see National Tertiary Education Industry Union v Curtin
University [2022] FWC 2514 at [50] (NTEU)).
[2022] FWC 2850
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21. Even if the Commission is satisfied that Mr Devjee is the only individual who will
carry out the functions of the protected action ballot agent, the Commission cannot
be satisfied that Mr Devjee personally is bound to comply with the Privacy Act
1988 (as required by regulation 3.11(6)).
22. The AMWU asserts at paragraph 38 of its submissions that because Mr Devjee is
an employee of IRIQ, and IRIQ is obliged to comply with the Privacy Act when
carrying out the ballot, the Privacy Act applies to him. To that end the AMWU
relies on section 6E(1B) of the Privacy Act.
23. That proposition cannot be accepted. Section 6E(1B) provides that the Privacy Act
applies to a ‘small business operator’ where the small business operator is carrying
out the functions of a protected action ballot agent. The ‘small business operator’ is
IRIQ. It is obliged to comply with the Privacy Act when carrying out a protected
action ballot; Mr Devjee is not. Further, it should be noted that ‘small business
operators’ are not otherwise required to comply with the Privacy Act (other than in
certain narrow circumstances identified in section 6D(4), none of which are relevant
here).
24. The effect of the AMWU's submission is that any individual working for an
‘organisation’ that is subject to the Privacy Act is themselves bound to comply with
the Privacy Act. That is not so. The Privacy Act only applies to ‘individuals’ where
the individual is an ‘organisation’ ( e.g. a sole trader carrying on a business with an
annual turnover in excess of $3 million), or for example, where an individual carries
on a small business (as a sole trader), and in that capacity is a protected action ballot
agent. That is not the position here.
25. Further, in respect of the evidence concerning the application of the Privacy Act to
Mr Devjee:
(a) At paragraph 17 of his statement, Mr Devjee says that IRIQ is a small business
operator bound to comply with the Privacy Act when conducting a protected
action ballot. That is correct, but says nothing in respect of the application of
the Privacy Act to Mr Devjee personally.
(b) Other than as described above, Mr Devjee does not make any reference to the
Privacy Act in his statement. For example, he does not provide any evidence
of his understanding of the requirements of the Privacy Act or how he intends
to discharge those requirements when conducting the protected action ballot.
(c) At paragraph 3 of his statutory declaration, Mr Devjee asserts, that because
IRIQ is a ‘small business operator’, he is also a small business operator ‘by
extension’. That is incorrect for the reasons given above.
(d) At paragraph 14 of his statement, Mr Dobson says IRIQ takes its obligations
under the Privacy Act very seriously. Again, this says nothing about the
application of those obligations to Mr Devjee. The statement at paragraph 13
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that Mr Devjee has extensive experience complying with the Privacy Act
should be given no weight in circumstances where that ‘extensive experience’
is not identified and Mr Devjee himself gives no evidence of any such
experience or, as outlined above, his understanding of the Privacy Act. Mr
Dobson has had an opportunity to put on evidence about the steps IRIQ will
take to comply with the Privacy Act, and the steps it will take to ensure Mr
Devjee complies. He has not done so.
26. For those reasons, the Commission cannot be satisfied that Mr Devjee is required
to comply with the Privacy Act and the requirements in Regulation 3.11(7) and (6)
are not satisfied. To that end, it ought to be borne in mind that the Commission must
reach the requisite state of satisfaction on the basis of some reasonably probative
evidence.” (footnotes and citations omitted)
The case for the Union
[14] In reply, the Union made the following submissions:
“1. In the material filed by the Respondent, no positive case is put against the
appointment of IRIQ Pty Ltd as a ballot agent.
2. No issue is taken by the Respondent with the manner in which the ballot is to be
conducted or the means by which this is to occur.
3. The Applicant’s evidence is uncontested.
4. No evidence has been adduced to counter any of the evidence lodged by the
Applicant (despite the Respondent being afforded many opportunities to do so).
5. Rather, the Respondent’s objections are technical objections principally of form
and not substance.
6. Moreover, many have now been addressed. The Respondent now appears to accept
that:
(a) IRIQ Pty Ltd meets the requirements of the FW Regulations;
(b) Mr Devjee is a fit and proper person.
7. All that remains in contention, is:
(a) whether IRIQ Pty Ltd is a fit and proper person, only on the discrete issue of
Mr Dobson’s evidence in respect of the title of the entity referred to in
previous decisions of the Commission;
(b) whether reg. 3.11(7) is satisfied in respect of Mr Devjee, in respect of:
(i) whether Mr Devjee is the only individual who will carry out the
functions of the protected action ballot agent; and,
(ii) whether Mr Devjee is bound by the Privacy Act.
(c) whether the Commission should otherwise exercise its discretion to appoint
IRIQ Pty Ltd.
[2022] FWC 2850
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8. We address each matter in turn.
IRIQ Pty Ltd is a fit and proper person
9. The only basis on which the Respondent claims that IRIQ Pty Ltd is not a fit and
proper person is, in essence, that where Mr Dobson gives evidence that IRIQ Pty
Ltd has previously acted as a protected action ballot agent, that the relevant ballot
agent was IRIQ Law Pty Ltd and that his evidence is ‘not correct’ [8 – 10].
10. The Respondent’s contentions do not provide any adequate basis to conclude that
IRIQ Pty Ltd is not a fit and proper person to conduct the ballot.
11. First, the Respondent by requesting that the matter be determined on the papers has
expressly elected not to cross-examine Mr Dobson in respect of his evidence.
12. If the Respondent wished to assert that Mr Dobson was somehow not credible or
deliberately giving untrue evidence, such a proposition should be put to a witness.
It has opted not to do so.
13. Mr Dobson gives evidence that it is IRIQ Pty Ltd who has conducted these ballots
in accordance with the relevant orders issued by the Commission.
14. Mr Devjee is an employee of that entity.
15. A review of those decisions make clear that it is Mr Devjee who is expressly
referred to as the employee providing a statutory declaration on behalf of the ballot
agent in those matters (see, for example, [2022] FWC 2617 and [2022] FWC 2729).
16. In those matters, it is plain that the person proposed in the application was IRIQ
Law Pty Ltd.
17. The correct naming of the ballot agent in the application is, naturally, the
responsibility of the applicant in each application (and not the ballot agent).
18. In this matter, there was a regrettable error in the application in listing the title of
the entity conducting the balloting made by the Applicant which was corrected on
being made aware of its error. (footnote omitted)
19. There was no error on the part of IRIQ Pty Ltd which did not misidentify itself in
the statutory declaration submitted to the Commission.
20. It will not be lost on the Commission that, with one exception, in the matters where
IRIQ Law Pty Ltd has been appointed as the protected action ballot agent it is the
present Applicant who has made the application (the sole exception involved the
CEPU in [2022] FWC 2617, a decision which is in near identical terms to [2022]
FWC 2617). We also observe that in the matter of Australian Manufacturing
Workers' Union (AMWU) v G & S Engineering Services Pty Ltd [2021] FWC 3909,
[2022] FWC 2850
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directions were expressly issued that ‘IRIQ Pty Ltd T/A IRIQ Law’ conduct the
ballot – see PR731372.
21. Third, the unchallenged evidence of Mr Dobson is that IRIQ Pty Ltd:
(a) is wholly independent of the Applicant and the Respondent in these
proceedings;
(b) it derives no interest, financial or otherwise, in the outcome of any ballot or
election we conduct and we are paid regardless of the outcome;
(c) has never been the subject of any complaint, sanction or penalty, in respect of
any contravention of workplace, privacy or corporations’ laws (or any other
laws);
(d) has never been sued;
(e) has conducted ballots in accordance with the relevant orders issued by the
Commission and any other directions made by the Commission;
(f) an independent advisor has never been appointed previously where IRIQ Pty
Ltd has conducted ballots in the past.
22. Each of these matters should fortify the Commission in a conclusion that IRIQ Pty
Ltd is a fit and proper person and the objection ought not be upheld on this basis.
Mr Devjee only person to carry out ballot
23. The submission at paragraph [20], that the Commission cannot be satisfied that Mr
Devjee is the only ‘individual’ who will carry out the functions of the protected
action ballot agent, because the statements of Mr Devjee and Dobson state that he
is the only ‘employee’ who will carry out the functions, is pure speculation.
24. Again, if the Respondent wished to make such a submission, the proposition that
the witnesses deliberately omitted any reference to others being involved in the
process ought to have been put to them. The Respondent has deliberately elected
not to do so.
25. The submission is also incorrect. At paragraph [23] of Mr Dobson’s statement he
expressly states:
“Mr Devjee was authorised by IRIQ Pty Ltd to make the statutory declaration and
statement already filed in this proceeding, on behalf of IRIQ Pty Ltd as to the
company’s suitability to act as ballot agent and his own suitability as the
individual who will carry out the functions of the protected action ballot agent
for the body corporate. [Our emphasis)]”
26. This ground cannot be upheld and the Commission can be satisfied that it is Mr
Devjee alone who will be carrying out the functions of the ballot agent on behalf of
IRIQ Pty Ltd.
Mr Devjee bound to comply with the Privacy Act
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27. It is not disputed that IRIQ Pty Ltd is bound by the Privacy Act.
28. The contention that Mr Devjee is not bound by the Privacy Act, is incorrect.
29. Section 6E(1B) of the Privacy Act, provides that:
“… if a small business operator is the protected action ballot agent for a protected
action ballot conducted under Part 3‑3 of the Fair Work Act 2009, this Act
applies, with the prescribed modifications (if any), in relation to the activities
carried on by the small business operator for the purpose of, or in connection
with, the conduct of the protected action ballot, as if the small business operator
were an organisation.”
30. Mr Devjee’s activities performing the functions of ballot agent are taken on behalf
of IRIQ Pty Ltd as its employee and with its express authority (as is apparent from
the material filed with the Commission).
31. A company has no physical existence and can only act through its employees and
agents.
32. So much is reflected in provisions of the Privacy Act which have the effect that:
(a) conduct engaged in by Mr Devjee on behalf of IRIQ Pty Ltd as an employee
within the scope of his actual or apparent authority is taken for the purposes
of a prosecution for an offence against the Privacy Act or proceedings for a
civil penalty order under the Regulatory Powers Act (as it applies in relation
to the civil penalty provisions of the Privacy Act), to have been engaged in
also by the body corporate unless the body corporate establishes that the body
corporate took reasonable precautions and exercised due diligence to avoid
the conduct (s. 99A(2) of the Privacy Act);
(b) where it is necessary to establish the state of mind of IRIQ Pty Ltd in respect
of particular conduct, it is sufficient to show that the conduct was engaged in
by Mr Devjee as an employee within the scope of his actual or apparent
authority and that he had that state of mind (s. 99A(1) of the Privacy Act).
33. In performing the functions of ballot agent on behalf of IRIQ Pty Ltd, Mr Devjee is
thereby bound by the Privacy Act and, his conduct is taken to be that of IRIQ Pty
Ltd where it is engaged in as an employee within the scope of his actual or apparent
authority.
34. The import of the Respondent’s submission is that no employee of a business could
perform the functions of a protected ballot agent. Such a conclusion would
undermine a number of prior decisions of the Commission (not least those involving
Mr Devjee). This type of absurd outcome, plainly was not intended by the framers
of reg. 3.11 of the FW Regulations.
35. Finally, the Respondent’s characterisation of the Applicant’s evidence as to IRIQ
Pty Ltd’s and Mr Devjee’s commitments to observe their obligations under the
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Privacy Act [25(d)] are unwarranted. The material lodged by Mr Dobson and
Devjee both expressly refer to their obligations under the Privacy Act (and commit
to them). There is adequate material before the Commission to conclude they will
observe their obligations.
Commission should exercise its discretion to appoint IRIQ Pty Ltd
36. Again, the Respondent has advanced no positive case, founded on evidence, as to
why the Commission ought not exercise its discretion to appoint IRIQ Pty Ltd as a
ballot agent.
37. We have addressed above the purported (single) alleged inaccuracy in respect of
the evidence of Mr Dobson. This proposition has not been put to the witness in
cross - examination and is a mere submission. Nothing in these decisions or the
material filed by the Applicant would lead the Commission to conclude that IRIQ
Pty Ltd was anything other than a fit and proper person to conduct a ballot.
38. Mere ‘residual concerns’ about whether the Privacy Act applies are no basis not to
exercise the discretion. The Commission is either satisfied the requirements of the
FW Regulations are met or it is not. If it is not, then it does need to make a
discretionary discretion.
39. Finally, the FW Act allows an applicant to nominate another ballot agent, other than
the AEC.
40. Cogent and compelling reasons have been expressed for this. The Commission can
comfortably exercise its discretion to appoint IRIQ Pty Ltd as the ballot agent,
having regard to the dispersed nature of the Respondent’s workforce and the
efficiencies in the manner the ballot is to be conducted (none of the evidence in
respect of this is challenged).
41. The Applicant submits that on the evidence before you and in the absence of any
countervailing evidence, IRIQ Pty Ltd is a suitable ballot agent to appoint.
42. Whether you decide to appoint IRIQ Pty Ltd or not, we submit, there is no basis not
to make the order.
43. Finally, for clarity, paragraph 42(d) of the AMWU’s outline of submissions filed
26 October 2022 was included in error and is not relied upon.”
Consideration
[15] Particularly in cases where PABO applications are not contested, the Commission relies
heavily on accurate information being provided to it, both in the application itself and in the
statutory declaration filed in support of such application. The Commission should be able to
rely on applicant unions to provide accurate information.
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[16] What has become clear through the evidence and submissions filed in this matter is that
the Commission was misled in the previous applications relied on by the Union in making
orders nominating a ballot agent that did not exist. The consequence that arguably flows from
an invalid ballot (given the ballot agent does not exist), is that any industrial action subsequently
taken by employees would not be protected, leaving such employees exposed to the
consequences of taking unprotected industrial action.
[17] As the Respondent correctly submitted, it is not for the Respondent to dissuade the
Commission that the requirements of section 444 have not been met. The onus lies solely with
the Union to satisfy the Commission as to these matters.
[18] Here, the Respondent identified the deficiencies with the application immediately on
being asked by the Commission to respond to the application, however it took four attempts by
the Union (in the form of further evidence and submissions) to adequately respond to the
matters raised.
[19] To the extent these matters have not already been dealt with this in this decision, I find
the following:
a. I do not accept the Respondent’s objections are “technical objections principally of
form and not substance”. The requirement for the Commission to be satisfied as to
the requirements of s.444 and the Regulation are not trivial matters to be taken
lightly.
b. While I agree that “IRIQ did not misidentify itself in a statutory declaration
submitted to the Commission”, in my view there remains an obligation on the
proposed ballot agent, upon receipt of the Order issued by the Commission, to ensure
that the entity the Commission has appointed as ballot agent is in fact the entity that
undertakes the ballot in accordance with the requirements. This weighs against a
finding that IRIQ is a fit and proper person to be appointed a ballot agent.
c. I am satisfied that if IRIQ is appointed the ballot agent, Mr Devjee will be the
individual who will carry out the functions of the ballot agent on behalf of IRIQ,
based on the evidence of Mr Dobson1. As the evidence confirms he will be “the
individual”, and so I am satisfied it will be Mr Devjeee alone who will carry out
these functions.
d. I agree with the Unions submissions as to the application of the Privacy Act to Mr
Devjee. For the reasons contended by the Union, I accept he is bound by it when
performing the functions of the ballot agent taken on behalf of IRIQ. I agree with
the Union that if the Respondent were correct in its interpretation, it would have the
effect that no employee of a business could perform the functions of a ballot agent,
which I accept is not the intention of the legislation.
e. On the basis of the material before me, including the declaration of Kegan Scherf of
AMWU made on 14 October 2022 setting out the steps taken by them in bargaining
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with the Respondent and that they have been, and are, genuinely trying to reach
agreement with the Respondent, I am satisfied that there is a notification time in
relation to the proposed agreement and that the requirements in s.443(1) of the Act
have been met.
[20] While it has been a difficult decision given the persuasive arguments put by the
Respondent, I am satisfied, having weighed all the evidence, that IRIQ is capable of being
appointed as the ballot agent. This is primarily based on the uncontested evidence of Mr Dobson
and Mr Devjee as to each of the matters required to be satisfied which are set out in the
Regulation. The decision has been difficult because IRIQ have clearly undertaken ballots in
relation to other PABO applications where IRIQ Law Pty Ltd was the nominated ballot agent,
and when IRIQ must have been aware that that entity did not exist. Likewise, it is concerning
that the Union continued to rely on PABOs made by the Commission in other applications
where IRIQ Law Pty Ltd was appointed as a ballot agent, simply characterising it as a
“regrettable error”, to support the making of a PABO in this application.
[21] On balance, having weighed all the evidence, I am satisfied that IRIQ has demonstrated
it is a fit and proper person to conduct the ballot.
[22] The final question then is whether the Commission should exercise its discretion to
appoint IRIQ as the ballot agent. Based on the evidence of Mr Scherf, I am satisfied such
discretion should be exercised. I accept an electronic ballot will be more convenient and
accessible for employees than a paper ballot undertaken by the AEC, particularly where access
to a paper ballot may be difficult given the geographic location of employees including where
their rosters may require them to remain away from their homes for extended periods of time.
Conclusion
[23] The PABO is made in the terms set out in PR747145.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR747144
1 See paragraph 23 of Statement of Dean Dobson.
OMMISSION LOVES EN THE SEAL OF THE F
